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Lookup NU author(s): Dr Derek WhaymanORCiD
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Joseph Story popularised the idea that equity had three jurisdictions: exclusive, concurrent and auxiliary in the latter half of the nineteenth century. However, this trichotomy can be traced back further and settled in the time first half of that century. Since then, we have seen formalism and the rigor aequitatis set in, and thereafter the retreat of formalism since the 1960s.Given the large number of equity cases to reach the appellate courts in recent times, it is time to reconsider a taxonomy of equity for the twenty-first century. I suggest there are three kinds of reasoning seen in the cases.The first kind is ‘unconscionability’ equity, offering the widest amount of discretion. It appeals to traditional equitable concepts. Proprietary estoppel is the paradigm example of this kind of equity, but cases such as Pitt v Holt [2013] UKSC 26 also show a degree of this too.The second is ‘harmonisation’ or ‘fusion’ equity, where it is thought that equity loses its unique character because it adopts principles from the common law. Then, its only difference compared to the common law is that its rules came from actions dealing with specialist subject-matters rather than from separate courts.The third is, using Kevin and Susan Gray’s terminology, ‘axiomatic’ equity. This kind, while holding equity as uniquely distinct from the common law, rejects discretion and insists that liability for tracing, fiduciary and trust law is built upon certain fixed, unyielding axioms with no space for discretion. It is the lesser-known of the three, yet it has determined leading cases such as Foskett v McKeown [2001] 1 AC 102 (HL). This technique is said by Lord Millett to be a uniquely equitable way to determine liability and he would reject the reasoning in the cases of Target Holdings Ltd v Redferns [1996] 1 AC 421 (HL) and AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58 accordingly.This paper identifies and tracks leading cases in these categories. It argues that axiomatic equity, suitable for property law and tracing, was correctly rejected in Target Holdings and AIB because it would, on varied facts, lead to inequitable outcomes. However, the harmonisation of equity in those cases has not resulted in complete assimilation to the common law. Clear space exists for equitable principles seen more usually in the ‘unconscionability’ cases to be adopted. This is what will keep equity uniquely equitable.
Author(s): Whayman D
Publication type: Conference Proceedings (inc. Abstract)
Publication status: Published
Conference Name: Society of Legal Scholars Conference
Year of Conference: 2016
Online publication date: 06/09/2016
Acceptance date: 01/01/1900
Publisher: Society of Legal Scholars
URL: http://www.slsconference.uk/
